In light of two recent articles discussing the interplay of LEED 2009′s Minimum Program Requirements, decertification, and the ongoing Northland Pines High School certification challenge proceeding, it’s worth revisiting these topics in greater detail to clarify some misconceptions that have persisted over the past few months, particularly after remarks in response to those articles from USGBC.
Tag Archives | LEED 2009
Although the costs of auditing were raised by opponents to the plan earlier this year, mandatory energy audits are now required every ten years, though buildings certified under LEED 2009 for Existing Buildings: Operations & Maintenance or which receive EPA’s Energy Star label are exempt. It’s this exemption that’s of particular interest to us here at GRELJ.
While California’s recent adoption of a state-wide green building code once again has green building legal practitioners focused on the legal issues surrounding green building legislation, the antitrust implications of incorporating LEED or other third-party green building rating systems into state- and local-level legislation has yet to be fully explored.
According to an article that appeared last week in Eagle River, Wisconsin’s Vilas County News-Review, a group of local residents have filed a 125-page complaint with USGBC that challenges the award of LEED Gold certification to the Northland Pines High School.
The possibility that a LEED-certified project could be “decertified” by USGBC or GBCI in the event that any of the new LEED 2009 Minimum Program Requirements (“MPRs”) are not satisfied presents a variety of novel legal issues which we presented earlier this year here at GRELJ when the first iteration of MPRs was announced by USGBC. Today, Engineering-News Record (“ENR”) published an article that highlights a number of those issues, but also raises the question of who, exactly, would have standing to bring a decertification proceeding. If strictly limited to USGBC or GBCI, a recent comment here at GRELJ from Brian Anderson (“lawsuits are bad for marketing”) suggests that decertification would be a remote possibility. However, in the ENR piece, which is titled Building Rating System Requirement Raises Concern and authored by Nadine Post, my colleague Ujjval Vyas notes that “[a]ny third party has the right to initiate a non-compliance action by USGBC. This creates a huge risk and provides standing to any entity whatsoever to injure a building owner or tenant.” If third parties can compel decertification proceedings, the risks associated with failing to comply with the MPRs are far more serious than if that discretion rests exclusively with USGBC or GBCI.
As you may know, USGBC’s LEED v3 program launched this past Monday, April 27. Project teams currently pursuing LEED certification under any of the Version 2 programs can opt into LEED v3 for no additional registration fee through the end of the year. The Version 2 programs will be available to project teams for registration until June 26; after that date, all projects must proceed with registration under LEED v3. LEED v3 is comprised of what USGBC calls “LEED 2009″ revisions to the suite of LEED rating systems (other than Homes and Neighborhood Development, which are not changing under v3), a new online interface for project teams, and a shift in the administration of the LEED certification process to the Green Building Certification Institute (“GBCI”). USGBC calls the LEED 2009 credit revisions “a reorganization of the existing commercial and institutional LEED rating systems along with several key advancements.” The revisions contemplate harmonization (i.e., credits and prerequisites are consistent across all LEED 2009 rating systems), credit weighting (i.e., greater emphasis on energy efficiency), and regionalization (up to four bonus credits for projects that address a local environmental issue of import). Although they are important to review for background purposes, the thrust of this article is not to detail the mechanics of the LEED v3 program. Rather, a number of the new minimum program requirements (“MPRs”) present some novel legal issues for project teams- and their attorneys- to consider in connection with drafting construction agreements or leasing documents in connection with LEED v3 projects.
The Northeast Sustainable Energy Association (“NESEA”) held its annual Building Energy conference last week in Boston and sparks apparently flew during a panel discussion that featured Henry Gifford, whose controversial and well-disseminated “Lies, Damn Lies, and… (Another Look at LEED Energy Efficiency)” paper critiqued both LEED generally and the USGBC-promulgated New Buildings Institute study which concluded that LEED buildings were using 30 percent less energy than non-LEED buildings. The panel was moderated by BuildingGreen.com’s Nadav Malin and also included USGBC vice president for LEED technical development Brendan Owens. Boston-based blogger Michael Prager attended the panel and has authored an extremely insightful summary of the event, including quotes from both panelists and audience members. Many of the quotes in Mr. Prager’s article ring particularly salient in light of the uproar over the recent NAIOP study which I noted here at GRELJ last week in the context of using predicted performance as the basis for making building policy decisions. It’s clear that thus far in 2009 there has been a significant shift in attention towards building performance-related issues with respect to both LEED and green building policy generally. As states and municipalities prepare to receive close to $7 billion in stimulus funds to, in part, craft and implement local green building legislation, I think that the substance of the discussion at the NESEA event should become of increasing utility to both stakeholders and policymakers. Of course, as always, it also suggests the overarching importance of vetted contract language in connection with LEED or any other types of green building projects.
The long-awaited LEED Version 3.0 could have important implications for municipal and state level green building legislation.